New Hampshire Senate Bill 465

Summary

New Hampshire Senate Bill 465 would bar the dissemination of images of another person that contain nudity, sexual excitement, erotic fondling, sexual intercourse, sado-masochistic abuse or urination in a sexual context or bondage and “fetter” in any context:

without the consent of the person depicted in the image,

if the person obtained the images under circumstances in which a reasonable person would know or understand the image was to remain private.

There is an exception for dissemination of an image for a “lawful public purpose.” This term is not defined.

Status

The bill is in the Senate Committee on Judiciary.

Analysis

» Content-based legislation subject to strict scrutiny analysis

Images disclosed without the consent of the person depicted do not fit any of the categorical exceptions to the First Amendment, so the legislation must satisfy strict constitutional scrutiny. It is unlikely that this bill meets the strict scrutiny test.

The legislature may have a compelling interest in protecting individuals from being harassed or tormented, but this bill is not narrowly tailored to meet that compelling state interest. The bill is not limited to criminalizing malicious invasion of privacy. There is no requirement that the person who distributes the image do so with an intent to harass, threaten, coerce, stalk or otherwise torment the person depicted. There is no requirement that the person depicted suffer any harm from the distribution of the image. Without both of these elements, the legislation goes far beyond its compelling state interest and criminalizes a substantial amount of First Amendment-protected speech.

» Inadequate knowledge standard

The legislation is also likely unconstitutional for failing to use a specific knowledge standard to determine if the defendant knew the distribution was without consent and whether the person in the image understood that the picture would remain private. The bill is satisfied if the defendant knew or should have known these elements. This is a negligence standard and is inadequate in a law that imposes a criminal penalty on speech.

» Exception for “lawful public purpose” unconstitutionally vague

The insertion of a vague exception to liability for dissemination of images for a “lawful public purpose” does not cure the constitutional defects; rather it makes it more likely the bill is unconstitutional. This term is undefined and, on its face, is circular. If dissemination satisfied the elements of the bill, it is not lawful. But, if it is lawful, then there is no need for the exception.